I.P. Singh, J.

This application in revision under sections 397 and 401 of the Code, of Criminal Procedure (in short the ‘Code’) is directed against the order dated 1.3.1988 passed by Shri A.R. Ansari, Judicial Magistrate, 1st Class, Arrah in G.R. Case No. 689 of 1979 Tr. No.356 of 1988 (the State Vrs. Ram Awadhesh Singh and others) by which the learned Magistrate allowed a petition filed by the learned Assistant Public Prosecutor filed under section 321 of the Code as a result of which all the accused persons (Opposite Party nos. 2 to 7) were acquitted. The informant is the petitioner before me.

2. From the prosecution case it appears that the informant had submitted a written petition before the Officer Incharge Udwantnagar Police Station on 2.4.1979 alleging therein that on the same day at 6 A.M. while the petitioner was going towards his Khalihan to attend the call of nature be saw opposite party nos. 2 to 7 up rooting the gram crop from his field. When the petitioner protested opposite party no. 6 ordered to kill him. On this opposite party no. 2 fired his gun on the informant but the shot did not hit him. In the meantime, father of the informant reached the spot and he was also assaulted by opposite party no. 5 by the butt of the pistol. On the basis of the aforesaid statement police instituted a case under sections 147, 148, 149, 323 and 307 of the Indian Penal Code against opposite party nos. 2 to 7. After completing the investigations the police submitted the charge sheet under the aforesaid sections against opposite party nos. 2 to 7.

3. On 14.6.1979 opposite party nos. 2 to 7 tiled an application before the Chief Judicial Magistrate, Arrah stating therein that no case under section 307 of the Indian Penal Code was made out against them and, therefore, no cognizance against them should be taken under this section. The learned Chief Judicial Magistrate, however, rejected this prayer of opposite Party nos. 2 to 7 and by the order dated 18.8.1979 took cognizance against them under the aforesaid sections including section 307 of the Indian Penal Code. Thereafter opposite party nos. 2 to 7 filed a revision petition before the learned Sessions Judge, Bhojpur against the aforesaid older of the learned Chief Judicial Magistrate, Arrah. It was registered as Cr. Revision Case No. 338/1979 and was heard and disposed of by the learned 6th Additional Sessions Judge. Arrah who by his order dated 19.1.1981 modified the order of the learned Chief Judicial Magistrate dated. 18.8.1979 and held that no case under section 307 of the Indian Penal Code has been made out against the petitioners before him and therefore the cognizance against opposite party nos. 2 to 7 should be deemed to have been taken only under sections 147, 148 and 323 of the Indian Penal Code.

4. Against the aforesaid judgment of the learned 6th Addl. Sessions Judge. Arrah the present petitioner filed Cr. Rev. No. 402 of 1981 before this Court which was heard and disposed of by a learned Single Judge by the judgment and order dated 23.9.1981 in which the following observation was made:

"At this stage I do not want to interfere with the order passed by the 6th Additional Sessions Judge although I do not agree with the views expressed by him for not framing charge under section 307 of the Indian Penal Code (emphasis supplied). However in view of the provision under section 323 of the Code of Criminal Procedure the Magistrate before whom the case is transferred for trial if it appears to him at any stage of the proceeding that the case should be tried by the Court of session, he is competent to commit the accused persons to the Court of session under the said provisions With the above observation this application is disposed of.”

5. The petitioner has further contended that in the year 1979 itself the original record of G.R. Case No. 689/1979 was sent to the court of the learned Sessions Judge but the same, however, could not be returned to the trial court before 18.4.